3/31/15 1:01 PM EDT

A former General Services Administration official at the center of a scandal over lavish conference spending is set to plead guilty Tuesday in a criminal case charging him with submitting false expense reports and lying to investigators.

Jeff Neely is set for a change of plea hearing Tuesday afternoon in San Francisco, according to the docket for the U.S. District Court there.

Neely was indicted last year on five felony charges: two of making false claims on the U.S. Treasury and three of making false statements to government officials. There are signs that he may plead guilty to one of those charges, but there was no official indication on the court docket.

Each charge carries a penalty of up to five years in prison and a fine of up to $250,000. Under federal sentencing guidelines, defendants are usually sentenced to substantially less than the maximum penalty, especially in cases involving a guilty plea.

One of Neely's defense attorneys declined to comment in advance of the hearing. A spokesman for prosecutors had no immediate comment.

The flap over an $800,000 conference Neely staged in Las Vegas ultimately led to the resignation of GSA Administrator Martha Johnson and prompted the Obama administration to impose stricter rules on conference spending across the federal government.

While many lawmakers chastised Neely at a 2010 House hearing where he took the Fifth Amendment, others have complained that the crackdown on conferences curtailed training opportunities for government workers and hurt resort venues like Las Vegas.

Some experts have also criticized the criminal charges against Neely as overkill, suggesting that disciplining or firing him might have been adequate sanction. The indictment accuses Neely of improperly charging the government for two or three hotel nights as well as round trip air travel between Guam and Saipan.

"In the cold light of hindsight, this seems like huge overreach, as was the forced resignation of the GSA administrator, Martha Johnson, who was not even involved in wrongdoing or cover up," said Steven Kelman, a professor at Harvard's Kennedy School of Government. "Media frenzies can hit not only politicians, who in some sense have agreed to them by taking the jobs they have, but also public officials in the executive branch, including career people."

Neely is to enter his guilty plea in a courtroom in the same building where he worked for years overseeing federal government buildings in the Western region of the U.S.

3/31/15 12:02 PM EDT

A federal judge has ruled that the Central Intelligence Agency need not release documents pertaining to a review the agency's then-director ordered in 2009 of materials the Senate requested about CIA's interrogation program many senators contend involved the torture of terror suspects.

The memos, often referred to as the Panetta Review after former director Leon Panetta, became fuel for a CIA-Senate tussle last year after some Senate Democrats said conclusions in those records were at odds with claims current CIA Director John Brennan made in the agency's official response to an in-depth Senate Intelligence Committee investigation of the interrogation effort.

U.S. District Court Judge James Boasberg ruled Tuesday that even though the so-called Panetta Review was never completed, the memos that were prepared are exempt from disclosure under a Freedom of Information Act exemption that protects the internal deliberative process of government.

"The Reviews themselves were deliberative. They were written as part of the agency’s consultative process and entailed policy-oriented judgments. Just because the project was cast aside does not mean that the documents lose their protection," Boasberg wrote in a 19-page opinion posted here. "This Circuit has repeatedly emphasized that agency personnel must know from the get-go that their work will not turn into front-page news regardless of whether a project is ultimately scrapped; were it otherwise, they might temper everything they write for fear that it will not be protected."

The request and lawsuit seeking the records were brought by Vice News reporter Jason Leopold.

In a Senate floor speech in December, departing Sen. Mark Udall (D-Colo.) accused the CIA of a "cover up" and said the Panetta Review documents proved that. He hinted at some of the contents of the review records, but ultimately seemed not to utilize his Congressional immunity to disclose the classified memos during Senate debate.

CIA officials have said the individuals preparing the review memos did not have all the facts senior officials did when formulating the agency's official response to the sharply-critical Senate Intelligence Committee report.

Despite the spy agency's stance that the content of the Panetta Review should remain confidential, the CIA released three pages of emails about the review to POLITICO in 2013. In one of the emails, a CIA staffer suggested the review was compromised by including staffers who had worked on the "Rendition, Detention & Interrogation" program.

"There were too many folks who had been involved in the program working in the Task Force," the unidentified CIA employee wrote. "For obvious reasons, I believe that no [counterterrorism center] employees who had been involved in the program should have been assigned to [the Senior Review Team]."

3/29/15 11:33 PM EDT

A notice the Obama administration placed in the Federal Register earlier this month seemed to confirm once and for all what many transparency advocates have treated as a given for years: The White House is beyond the reach of the Freedom of Information Act.

Well, not so fast.

The formal notice, awkwardly made public as many transparency advocates were celebrating Sunshine Week, officially withdrew long-dormant regulations that once created procedures for FOIA requests to part of the White House known as the Office of Administration. The George W. Bush White House actually stopped processing such requests about a decade ago. (They sat on one of mine for several years before sending a short letter saying they had no intention of fulfilling it.)

The glimmer of hope for FOIA backers involves not the relatively mundane Office of Administration, but the much more interesting National Security Council. It processed FOIA requests for a time, but was declared off limits by the U.S. Court of Appeals for the D.C. Circuit in 1996.

A City University of New York legal clinic filed a FOIA lawsuit in 2013 challenging the rationale of that ruling: that the NSC is only an advisory body and doesn't make decisions. The suit was tossed out by a federal judge in Brooklyn, but an appeal pending at the 2nd Circuit has gotten a boost from an unexpected source: the so-called torture report the Senate Intelligence Commitee released last December blasting the CIA's detention and interrogation program for terror suspects.

That report suggests that President George W. Bush didn't know about aspects of the interrogation program and that the use of some techniques was approved by the NSC's Principals Committee. If that's true — and there's continuing dispute about what Bush knew and approved of — then it undercuts the notion that the NSC is simply advising the president.

Wesley: Are you saying that anything the CIA did in terms of enhanced interrogation techniques ... was clearly a presidential directive?

Lilley: No, your honor —

Wesley: Well then, well if that’s not the case ... It's a very curious position for you to take because ... some of these assertions that you're making that the president is at the end of all these decision chains bear heavy burdens and I don’t quite understand it.: ... Who had the authority? Did only one person have the authority to order enhanced interrogation techniques?

Lilley: Your Honor —

Wesley: Yes or no?

Lilley: I cannot speak to individual decisions —

Wesley: Well, if you can’t tell me, then you’re telling me that then the president perhaps didn’t make that decision. And then you’re telling me that someone else did. And if someone else did, then I begin to have a problem. ... I have a hard time understanding how their sole function is to advise or assist the president if suddenly they decide, independent of any presidential approval, that they can torture someone!

At the court's request, Lilley submitted a follow-up letter insisting that NSC didn't make any decisions but simply gave advice to the president or helped Cabinet members with their own authority coordinate decisions.

The fact that the case is in New York, before the 2nd Circuit, is likely no accident. While the D.C. Circuit is normally considered the pre-eminent authority on FOIA matters, technically all the circuit courts are free to reach their own conclusions. In other words, the 2nd Circuit could decide the D.C. Circuit decision from 1996 is wrong.

More likely, though, would be a ruling that whatever the NSC may have been doing then, it seems to have more independent authority now. Another possibility would be to remand the case with instructions to allow CUNY's Main Street Legal Clinic to seek documents and testimony about the function of the NSC.

3/28/15 3:51 PM EDT

The State Department is fighting a journalist's Freedom of Information Act lawsuit demanding that the agency process for release a broad swath of email and other records produced by Hillary Clinton's aides during her four years as secretary of state.

The request Vice News reporter Jason Leopold filed in November initially sought all records of Clinton's office during her tenure, including all emails, as well as all records pertaining to meetings Clinton or any of her top aides attended during that time. After a Justice Department lawyer said that demand was too broad, Lepoold's lawyer agreed to limit the request to records relating to any of 60 topics, including Gaza, Guantanamo, Khalid Sheikh Mohammed, targeted assassinations, emails between Clinton and aide Philippe Reines and memos about the Freedom of Information Act itself.

However, the State Department is insisting that the request is still too burdensome.

"The list of topics is incredibly broad and diverse, including such items as 'Palestine,' 'CIA and torture,' 'women’s issues,' 'education,' 'Mideast peace,' 'no child left behind,' and 'global warming,'" Justice Department lawyers wrote in a court filing Friday (posted here).

"Responding to this request would still require the Department to search for and process a vast quantity of material, imposing an unreasonable burden on the Department," the government lawyers wrote. "In fact, the task of performing and reviewing the results of the five dozen searches that plaintiff has proposed could actually prove to be more labor intensive and time-consuming for the Department than the already insufficient narrowing that plaintiff had previously offered and would nonetheless provide plaintiff with fewer documents than he would receive under the Department’s current proposal."

State is proposing that Leopold wait until the department processes for release under FOIA rules 55,000 pages of emails Clinton turned over to her former agency in December after a top official there asked four former secretaries to return copies of any work-related records maintained on personal accounts or in personal files.

A State Department spokeswoman has said that review will take several months to complete. However, in Friday's court filing, the agency committed to no deadline for release whatever portion of the 55,000 pages officials decide to make public.

"Defendant’s request for a stay should be denied because it is an open-ended request with no guaranteed deadline. Defendant could not provide any information regarding how long it would take the Department to voluntarily review and make public Secretary Clinton’s emails," Leopold's attorneys, Ryan James and Jeffrey Light, wrote in the same joint filing.

Leopold's lawyers also called the review of the 55,000 pages "irrelevant to this case."

"Limiting the review to only Secretary Clinton’s email would fail to capture the letter of the request as well as the spirit of the request, contrary to Defendant’s assertion otherwise, "the attorneys wrote, pointing to a comment by former State spokesman P.J. Crowley, that email was not the primary means of communication with senior officials in Clinton's office.

It is unclear just how many emails the State Department has from senior officials in Clinton's office. Spokespeople for the department said earlier this month that the agency did not begin automatically archiving emails for senior officials until February of this year.

The State Department announced Friday that Secretary of State John Kerry has asked the agency's inspector general to conduct a broad review of its recordkeeping and email practices, including its handing of FOIA requests.

Leopold's lawsuit, filed in January of this year, is pending before U.S. District Court Judge Rudolph Contreras—an Obama appointee based in Washington. The suit cites "widespread speculation that [Clinton] will run for President of the United States in 2016" as one reason for disclosure of records pertaining to her service as secretary of state.

3/27/15 2:00 PM EDT

The National Archives is preparing to release a set of White House records relating to the 2006 incident in which Vice President Dick Cheney shot one of his hunting partners during an outing in Texas. A slew of official photos of Cheney's activities on September 11, 2001 is also slated to go public.

The volume of papers actually pertaining to the shooting of Texas attorney Harry Whittington is unclear. A notice issued by the National Archives this week said 267 pages of records were designated for opening in their entirety and five pages in part. However, because the Archives' procedures call for archivists to process whole folders of records regardless of whether all the material is on-topic, much of the information to be released appears to be unrelated to the shooting.

The records come from what are called "miscellaneous outbox" files maintained by Cheney's office. They appear to consist largely of news clippings sometimes accompanied by notes from staff, as well as routine letters to the vice president.

About 50 pages from the files are to be withheld from public release at least for now. It seems unlikely the papers set for release contain any particularly sensitive advice, since such information can be withheld until 12 years after the end of a president's service. For President George W. Bush's White House, this protection does not expire until January 2021.

The Archives is also planning to release about 3500 official photos, depicting Cheney or aide David Addington, who served as the VP's legal counsel and, later, chief of staff. Many of the photos were taken on September 11, 2001, including some in the rarely-seen bunker under the White House, also known as the Presidential Emergency Operations Center. A total of 689 related photos are being withheld from release for reasons that were not disclosed.

Under a law passed last year, President Barack Obama and representatives for Bush and Cheney have 60 business days to assert any executive privilege objections they may have to the planned disclosures. That review can be extended once, for 30 business days.

Whittington was hospitalized after the 2006 shooting and reportedly suffered heart problems due to being peppered with birdshot in what Cheney described as an accident. The incident generated some suspicion because it wasn't disclosed to the press until the day after the shooting and then was revealed to a local newspaper rather than national news outlets.

CORRECTION (Friday, 4:28 PM): This post has been updated to reflect that Whittington was hit with birdshot, not buckshot, as he, Cheney and others were hunting quail at the time of the incident.

3/26/15 2:39 PM EDT

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) is pressing a top Justice Department official for a “zero-tolerance” policy for DOJ employees following a report that the Drug Enforcement Administration agents allegedly had “sex parties” with prostitutes hired by drug cartels in Colombia.

In his first comments on the report, released by the Justice Department’s inspector general on Thursday, Grassley said he was concerned that DOJ “may not be taking adequate steps to prevent its own employees from buying sex and thereby contributing to the demand for the human sex trade.”

“[F]or DOJ leadership, it is not enough to set anti human trafficking as a prosecutorial priority,” Grassley wrote in the letter to acting deputy attorney general Sally Yates, obtained by POLITICO. “It must also be a managerial and personnel priority.”

Grassley, in the letter, signaled that he was not satisfied with answers that attorney general nominee Loretta Lynch gave on this topic during her confirmation process.

“In her Feb. 9 response to my question on this subject, Ms. Lynch failed to commit to a zero tolerance policy, saying only that she will review policies to ensure that those who violate the ‘highest standards’ of conduct are held accountable,” Grassley wrote. “I hope this includes a zero-tolerance policy, but I simply do not know based on the nominee’s response.”

Grassley asked Yates to respond to a list of several questions on the matter by April 10, including whether she has considered adopting a zero-tolerance policy for Justice employees involved in prostitution, if Congress needs to give authority to DOJ on the issue and how the department makes sure that its workers and contractors “steer well clear” of soliciting prostitutes.

“Given the gravity of these concerns, a bright line rule is needed to warn all DOJ employees to steer well clear of contributing to the demand for human trafficking,” Grassley wrote to Yates. “And your commitment to a zero tolerance policy would achieve that before employees act in such a manner that violates the ‘highest standards’ of conduct.”

Grassley, who took over the chairmanship of the powerful Judiciary Committee earlier this year, is at the center of two top Justice Department confirmations currently pending in the Senate.

Lynch, who was nominated in November to replace Eric Holder, has seen a swell of opposition from Senate Republicans over her comments on President Barack Obama’s executive actions on immigration. Her confirmation is now tangled up in an unrelated Senate dispute over a human trafficking bill.

Meanwhile, Yates is also up for confirmation herself to formally become Lynch’s No. 2 at Justice. She went through her own confirmation hearing earlier this week.

The explosive IG report also detailed how Colombian police officers allegedly provided “protection for the DEA agents’ weapons and property” during the parties – with 10 DEA agents later admitting attending those events.

The IG report is part of a broader investigation into claims of sexual harassment with DEA and other agencies under the Justice Department, including the FBI; the Bureau of Alcohol, Tobacco, Firearms and Explosives; and the U.S. Marshals Service.

A Justice spokesman said the department was already in the process of revising its guidelines for employee conduct.

"We have received the letter and will respond as soon as possible,” the spokesman, Patrick Rodenbush, said Thursday. “We share Chairman Grassley's concerns and are working on policy guidance that will clarify that, even in foreign jurisdictions where solicitation of prostitutes is legal or tolerated, it is still a violation of Department policy to engage in such conduct."

3/25/15 7:19 AM EDT

A group of criminal justice reformers, including some who served prison time, are headed to the White House Wednesday to press President Barack Obama to do more to help those who’ve been convicted of crimes find jobs, housing and other necessities once they get out.

The delegation is urging Obama to issue an executive order that would ban the federal government and government contractors from asking most job applicants about their criminal histories. The idea, labeled “Ban the Box,” has already been enacted in some form in 14 states and more than 100 localities.

“The trip to the White House for me is really meaningful,” said Dorsey Nunn, who now runs the San Francisco-based charity Legal Services for Prisoners with Children and went to prison in 1971 — at the age of 19 — in connection with a liquor store robbery in which the store’s owner was killed.

“I had to sit down and wrap my head around the fact that I had walked through both the gates of San Quentin and the gates of the White House compound,” Nunn said in an interview, referring to a visit he paid to the White House for another event last year.

The “Ban the Box” campaigners are set to meet Wednesday with the White House Director of Urban Affairs Roy Austin, as well as others from the Domestic Policy Council and the National Economic Council, before going to the Labor Department for another meeting.

Former prisoners say the challenges of getting a job and a place to live after doing time are among the leading factors that push former inmates to commit new crimes and society to incur additional costs to lock them up again.

“Look, it’s not rocket science,” said Daryl Atkinson, a senior staff attorney at the Southern Coalition for Social Justice. “If folks can’t participate in the legal economy, that pushes them back to the illegal economy.”

Atkinson, who’s scheduled to attend the White House session Wednesday, spent 40 months in prison in North Carolina for drug trafficking in the 1990s before attending college and law school. He noted that about one in four American adults have faced charge or conviction in the criminal justice system and can encounter hiring problems as a result.

“This affects between 65 and 71 million Americans. If we want to make sure those folks have the opportunity to contribute to the economy and become taxpayers and productive members of society, this is a necessary policy initiative,” Atkinson said.

The campaigners say they’ve gotten a “very open” reception from other administration officials, such as a “re-entry” council Attorney General Eric Holder set up in 2011 to address problems integrating former prisoners into society.

Removing or delaying questions about criminal records in the federal hiring process raises obvious questions, like what to do about the tens of thousands of jobs that are security-related or require background checks. The Obama administration has pressed in court to preserve the government’s ability to demand such checks even for low-level positions, like store and data-entry clerks.

Atkinson said the fact that people with a criminal history might not be suitable for some government or contractor jobs doesn’t mean all of them should be off limits. “I can imagine in the FBI’s case, its positions, or Homeland Security, they’d be exempted out. That’s reasonable, but that’s the exception rather than the rule as far as the vast number of federal jobs associated with the federal government,” he said.

A White House spokesman declined to discuss the meeting or the administration’s stance on the “Ban the Box” idea, which was fought in California by the district attorneys’ association.

In 2013, the Obama administration warned federal contractors that bans on hiring those with criminal records could run afoul of discrimination laws because of the disproportionate rate at which minorities are incarcerated. However, the memo didn’t explicitly prohibit contractors from taking such issues into account.

As Obama’s presidency winds down, criminal justice reform has emerged as an issue of greater focus for him. It’s also garnering attention from Republican governors and from conservatives like mining barons Charles and David Koch. Former Obama White House aide Van Jones and former House Speaker Newt Gingrich are holding a summit meeting in Washington Thursday, aimed at cutting prison populations by 50 percent, eliminating mandatory minimum sentences, and expanding drug treatment and diversion programs.

The effort to focus on rehabilitating and reintegrating prisoners got a boost this week from two very prominent figures in the judicial system: Supreme Court Justices Anthony Kennedy and Stephen Breyer.

“The corrections system is one of the most overlooked, misunderstood institutions, functions, that we have in our entire government,” Kennedy said at a House budget hearing Monday. “Lawyers are fascinated with the guilt/innocence adjudication process. And once the adjudication process is over, we have no interest in corrections….This idea of total incarceration just isn't working. And it's not humane.”

“I think it is a big problem for the country,” Breyer added.

In connection with the White House meeting, more than 100 labor, civil liberties and religious groups sent a letter to Obama Wednesday urging him to take executive action to require what the advocates call “fair chance hiring.”

Another campaigner headed to the White House session, Pastor Mike McBride of the faith-based group PICO Network, said he believes the bipartisan drive will make it easier for Obama and his aides to see a move on the ex-prisoner employment issue as a part of his legacy.

“I believe we’re creating a kind of crescendo and climate where the idea we’re verbalizing will be an easy, softball pitch for them,” McBride said. “People shouldn’t be penalized for their whole life for indiscretions they have made.”

UPDATE (Wednesday 12:44 P.M.): This post has been updated with more detail on Thursday's criminal justice reform conference.

3/24/15 7:37 PM EDT

A federal appeals court announced Tuesday that it will hold an unusual oral argument session next month on the question of whether to stay a judge's order blocking President Barack Obama from carrying out new immigration executive actions he put forward last year.

The 5th Circuit U.S. Court of Appeals said it will hold two hours of oral argument in New Orleans on April 17. The session is aimed not at the legal merits of the ruling U.S. District Court Judge Andrew Hanen issued last month, but on whether to grant the federal government's motion to put that order on hold while the appeal of his decision goes forward.

Legal experts described as extraordinary the appeals court's decision to hold a public session focusing on a stay.

"That’s extremely rare," said University of Richmond Law Professor Carl Tobias. "Those are almost always addressed just on the papers and very quickly....I guess they just see this as such a huge issue beteen states and administration they're giving it full-dress treatment."

The appeals court also granted the federal government's motion for an expedited appeal in the case that pits the administration against 26 states challenging the legality of Obama's immigration actions. The 5th Circuit set a briefing schedule for the so-called merits appeal that runs through mid-May, pointing to possible oral arguments on that question later that month or in June.

"The rule of law is at the very heart of our case against President Obama’s lawless immigration action," Texas Attorney General Ken Paxton said in a statement responding to the court's announcement. "We are a nation of laws, and we are proud to lead a bipartisan coalition of 26 states fighting this Administration’s unilateral and unconstitutional use of executive power. We will vigorously oppose the president’s illegal amnesty plan in court."

A Justice Department spokeswoman declined to comment on the order.

Both sides in the litigation have been embroiled in a continuing dispute before Hanen about whether the Obama Administration clearly disclosed that after Obama announced the new immigration moves in November one aspect of them began to be carried out almost immediately: the issuance of three-year "deferred action" or "DACA" grants and work permits to illegal immigrants who entered the U.S. as children.

In his February order, Hanen ordered a stop to plans to expand that "childhood arrivals" program and to create a new program for illegal immigrant parents of U.S. citizens and green card holders. However, by the time Hanen issued his injunction, the Department of Homeland Security had already granted more than 100,000 three-year permits, mostly to people who applied before Obama announced his moves in November.

The Justice Department did present some evidence about the three-year grants, but federal government lawyers have apologized for other statements they said may have caused confusion. After a testy hearing last week, Hanen is now considering what to do about that issue.

The 5th Circuit order (posted here) makes clear they aren't diving into that dispute, at least not yet. "Nothing in this order is intended to affect or constitute a comment on any ongoing proceedings in the district court," the appeals court order said.

The 5th Circuit is viewed as America's most conservative federal appeals court, with a ratio of 2 Republicans to every Democrat on the active bench. Tuesday's order did not disclose which judges will consider the stay issue or the appeal on the merits.

UPDATE (Tuesday, 8:48 P.M.): This post has been updated with the Justice Department declining to comment.

3/24/15 12:46 PM EDT

The conservative group Citizens United filed its second lawsuit in a little over a week Tuesday, heading to court to demand photos, videos and hotel bills of former Secretary of State Hillary Clinton's travels during her four years as America's top diplomat.

The lawsuit filed in U.S. District Court in Washington (and posted here) complains that the State Department has taken no action for months on separate requests the advocacy group filed for all official photos of Clinton, all videos State made of her and for hotel invoices and other records relating to 10 foreign trips she took as secretary from 2010 through 2012.

A State Department spokesperson declined to comment on the newly-filed suit.

Last week, Citizens United filed suit seeking emails and other correspondence between top aides to Clinton and consulting firm Teneo, which was founded by one of President Bill Clinton's top aides, as well as correspondence relating to the Clinton Foundation.

The conservative group was already suing State in yet another case over a failure to respond to a request for manifests of travelers on Clinton's official trips. Earlier this month, a judge set deadlines for the agency to begin rolling disclosures of records responsive to that request, but she did not rule that any specific information must be disclosed.

Clinton, who's expected to announce a presidential bid in the next couple of weeks, is currently enmeshed in a controversy about her decision to use only a private email account during her tenure as secretary. She said she did so for convenience, but the practice may have put thousands of emails beyond the reach of Freedom of Information Act requests.

In December, Clinton turned over 55,000 pages of emails from that account to the State Department at its request. State spokespeople have said the agency is processing those messages for release under FOIA rules. Officials have predicted that process will take several months but have not committed to a specific deadline.

3/24/15 12:26 PM EDT

President Barack Obama's nominee for the No. 2 job at the Justice Department, Sally Yates, declined Tuesday to offer her "personal opinion" on whether Obama's recent executive actions on immigration are legal.

However, during questioning later at her Senate Judiciary Committee confirmation hearing, she added: " The Department of Justice has filed legal pleadings and I stand by those pleadings."

In response to questions from Sens. Mike Lee (R-Utah) and Jeff Sessions (R-Ala.), Yates cited both the ongoing litigation over the president's actions and a federal judge's ruling last month blocking the moves from going forward.

"This matter is in the courts now and as everybody here knows the Texas district court has ruled and the Department of Justice is going to abide by that ruling, not just in Texas but across the country, unless and until a higher court reaches a different decision," said Yates, who has been serving as acting deputy attorney general since mid-January.

"The Department of Justice is now currently involved in litigation on precisely this matter and as the acting deputy attorney general, it's really not appropriate for me to be giving my personal opinion on any matter in which the department is involved in pending litigation....The department's position is set forth in the pleadings and I stand by those pleadings."

Despite the lack of a direct answer, Lee said he was pleased that Yates conceded that those arguing that Obama's moves were not legal have a reasonable position.

"It is an issue on which reasonable people can disagree," she said.

When Obama's nominee for attorney general, Loretta Lynch, went before the same committee in late January, she said she thought an Office of Legal Counsel Opinion justifying it was "a reasonable discussion of legal precedent." She eventually said flatly that she agreed with the memo, a stance which many Republicans have cited in opposing her nomination.

It is unclear why Lynch felt she could offer her opinion on the subject at her confirmation hearing in January. The matter was already in litigation at that time and Lynch also was serving in the Justice Department, albeit not in management at Main Justice but as U.S. Attorney in the Eastern District of New York.

While Lee suggested Tuesday that U.S. District Court Judge Andrew Hanen blocked Obama's immigration actions based on a disagreement with the OLC opinion, Hanen actually based his injunction against the moves on an issue not discussed in the publicly-released Justice Department legal opinion. The judge did express disagreement with conclusions in the legal memo, but he ultimately ruled the administration's actions were illegal because officials failed to undertake notice-and-comment procedures contained in the Administrative Procedure Act.

3/23/15 11:49 PM EDT

Governors and attorneys general representing 26 states Monday formally urged a federal appeals court not to stay a judge's injunction barring President Barack Obama from going forward with a series of immigration policy changes aimed at giving quasi-legal status and work permits to millions more illegal immigrants.

"The Executive wants to impose one of the largest shifts in immigration policy in our Nation’s history. The stay motion can be denied on that basis alone: such a questionable policy should not be implemented unilaterally before judicial review," lawyers for the state officials wrote Monday night in a brief filed with the New Orelans-based 5th Circuit U.S. Court of Appeals (and posted here).

The brief for the state officials — all of whom are Republicans — argues that there is no emergency requiring that U.S. District Judge Andrew Hanen's ruling blocking the Obama immigration moves be put on hold while the federal government's appeal of that decision goes forward.

Hanen issued a ruling last month questioning the legal basis for Obama's executive actions on immigration, but blocking them only on rather technical grounds that they had not been formally enacted as regulations by putting them through an official notice-and-comment period.

As expected, the 26 states' brief argues that the status quo that the courts should give weight to preserving is that which existed before the administration announced the latest round of immigration actions in November. Those moves included an expansion of an existing program for illegal immigrants who arrived in the U.S. as children and a new program for illegal-immigrant parents of U.S. citizens or legal residents.

"Such a drastic step [as a stay] would require an extraordinary showing of emergency and legal merit, and Defendants have failed to show anything close. In particular, they have identified no looming injury that could justify an 'emergency' stay," the states' lawyers wrote. "The preliminary injunction simply confines the Executive to what it previously admitted were the limits of its powers, temporarily preventing the implementation of an unprecedented and practically irreversible benefits program in order to allow the Judicial Branch to review its validity."

Some legal observers have said the Obama Administration's effort to temporarily block Hanen's decision pending an appeal faces long odds, especially in front of the conservative 5th Circuit.

Not all states are seeking to block Obama's immigration moves. A total of 14 states filed an amicus brief with the 5th Circuit earlier this month urging it to lift Hanen's decision nationwide, or at least limit the injunction to the states backing the lawsuit.

3/23/15 7:28 PM EDT

Acting at the Justice Department request to prevent the airing of U.S. national security secrets, a federal judge in Manhattan on Monday threw out a Greek shipping tycoon's libel lawsuit against an anti-Iran group.

The move by U.S. District Court Judge Edgardo Ramos to dismiss Victor Restis's suit against United Against Nuclear Iran was an unusual one because most motions to dismiss a case on state secrets grounds involve cases where the government is a party or the defendant is a government contractor known or alleged to have worked on secret programs.

However, Restis's suit accused UANI — a private, non-governmental organization — of libeling him with claims that his shipping firm provided assistance to Iran's nuclear program.

"The Court is convinced that further litigation of this action would impose an unjustifiable risk of disclosing state secrets," wrote the judge, who is an Obama appointee. "The Court recognizes that dismissal is a 'harsh sanction....' It is particularly so in this case because Plaintiffs not only do not get their day in court, but cannot be told why. However, dismissal is nonetheless appropriate. Simply put, there is no intermediate solution that would allow this litigation to proceed while also safeguarding the secrets at issue."

Restis's attorney, Abbe Lowell, hinted repeatedly Monday at some kind of connection between UANI and the U.S. government that led to the suit being stymied. In public court papers, Justice Department lawyers would not say even which agency had the concerns about the potential impact of the suit.

"We are disappointed that some secret relationship between UANI and the government allows UANI to hide from disclosing that association or to defend what has now been proven to be its false and defamatory allegations directed at Mr. Restis and his company," Lowell said. "We are mystified that the U.S. government has such a stake in this case that it would take such extraordinary steps to prevent full disclosure of the secret interest it has with UANI or others. And, we are concerned that, in our court system, such a result could occur on the basis of sealed, one-sided filings and meetings in which we were not allowed to participate."

Lowell said "other legal steps" are under consideration, but he did not specifically address an appeal.

UANI's lawyer, Lee Wolosky, hailed the judge's ruling.

"We welcome today's federal court decision dismissing Mr. Restis' lawsuit in its entirety. Since its filing we have consistently maintained that Mr. Restis' suit was meritless," Wolosky wrote. "United Against Nuclear Iran is a bipartisan not-for-profit policy and advocacy organization that will not be silenced by intimidation or threat. Through economic and social means and through the exercise of their First Amendment rights, the officers and staff of UANI have acted courageously and patriotically in their efforts to prevent Iran from obtaining nuclear weapons."

A Justice Department spokeswoman declined to comment.

Soon after taking office, Attorney General Eric Holder vowed to overhaul the government's use of the state secrets privilege to rein in and shut down litigation. He set up new internal procedures for reviewing such cases and vowed to try to allow such suits to proceed in a limited way wherever feasible. However, critics say the Obama Administration's track record is roughly the same as that of the George W. Bush Administration.

At Attorney General nominee Loretta Lynch's confirmation hearing in January, Sen. Dianne Feinstein (D-Calif.) complained that it has been nearly four years since the Justice Department reported to the Congress on the government's use of the state secrets privilege to defeat or limit cases.

Lynch said she wasn't familiar with the issue, but Feinstein called it "an important question." A spokesman for the senator said late last month that no further report had been provided.